More efficient than in vitro fertilization and cheaper than traditional adoption, embryo adoption, which also provides parents with the experience of carrying a child, is becoming more popular. But our legislature is still struggling with serious legal issues surrounding the practice.
THE PROMISE OF EMBRYO DONATION
is only limited by the questions that remain surrounding legal status. Obvious as it seems that embryos deserve some standing as potential lives, states generally treat them as personal property. Just eight states have legislation regulating embryo donation. In most states, the birth mother is a child’s legal mother; if she is married to a man, her husband is the child’s father. Where no superseding embryo-related law exists, a child who develops from an adopted embryo legally belongs to her birth parents.
Until legislators establish embryos’ legal standing—or lack thereof—judges and parents alike are operating in a legal vacuum.
Laws that treat embryos as property conflict with laws barring violence against “the unborn.” The federal successor to “born-alive” laws, the Unborn Victims of Violence Act of 2004 (UVVA), amended the United States Code “to protect unborn children from assault and murder, and for other purposes.” The perpetrator need not know his victim was pregnant, nor have intentionally caused harm to the fetus, to be charged. Those perpetrators who knowingly attempt to harm a fetus, however, are charged with “intentionally killing or attempting to kill a human being,” an offense that carries stiffer penalties. The law grants unborn children an attenuated form of legal standing. When Senator John Kerry voted against it, he cited concerns about its interaction with abortion rights,stating, “the law … provide[s] that a fetus is a human being.” Kerry’s fears have not been realized: Most federal and state laws exempt abortion from prosecution.
A number of states don’t specify whether feticide laws protect non-viable fetuses, but others specify when the product of conception acquires rights. The word “embryo” appears in Idaho, Michigan, Tennessee, and West Virginia laws; Alabama, Arizona, Georgia, Kansas, North Carolina, and Utah use the “any stage of development” definition for “unborn child.” (Alabama’s statute applies “regardless of viability.”) Other states use “quickening”—the first time a pregnant woman feels a fetus moving—as the critical milestone for fetal development, which takes place as early as 13 weeks after the woman’s last period.
The conflict between the default of treating embryos as property and the imperative to grant them special consideration has been limited to one particular type of legal proceeding: embryo custody disputes, cases in which ex-partners battle over the possession, transfer, or destruction of embryos. Property law encourages courts to treat embryos like any other asset; abortion law and criminal laws don’t address the status of pre-implantation embryos, although statutes targeting assailants who harm a fetus regardless of viability suggest destroying embryos without consent should be a crime. Adoption law potentially provides a basis for determining that genetic parents should have special, superseding rights over embryos, as birth mothers have over infants in adoptions.
Difficult as the question of embryo custody is, the issues surrounding the children embryos become—and accompanying parental rights and responsibilities—will be even harder to resolve. The laws we have don’t address whether transferring ownership of an embryo terminates genetic parental rights; conversely, they can’t answer how firm the rights of birth parents are over children not genetically theirs outside of surrogacy. While contract law seems an obvious solution, courts have rejected contracts in sperm donation cases. For example, a sperm donormay still have to pay child support, regardless of a contract with the birth parent. If a court tried to apply similar restrictions to embryo adoptions, that could mean genetic parents who transfer embryos remain financially responsible for the children they may become—a position more precarious than that of genetic parents who give children up for adoption at birth.
American lawmakers’ reluctance to define an embryo’s legal status stems not just from the internal contradictions of existing laws—property versus criminal, abortion versus adoption—but a broader reluctance to place legal limits on fertility medicine. While using pre-implantation genetic diagnosis (PGD) to select for gender is illegal in Canada, China, India, and the United Kingdom, sex selection is legal in the United States—and it’s a $100 million industry. Although peer countries—Italy and Germany, for example—limit the number of embryos that can be transferred in a single procedure to protect mothers and children, the U.S. has not chosen to do so. The failure of the fertility industry’s efforts at self-regulation in the United States has spurred ethicists to call for legal regulation, to no avail.
The solution proposed by Americans United for Life (AUL), representing the original, conservative advocates of embryo adoption, is to extend adoption law at the state level to apply to the transfer of embryos. Their proposal, however, veers too far from the current default—and too close to usurping abortion law—to be palatable to legislators. The better option is to define and protect the right of contract in embryo adoptions, permitting individuals and couples to reach enforceable agreements predicated on mutual beliefs about the legal status of embryos.
However it goes about it, a legislature is the only body that can resolve the questions implicated in embryo adoption. Until legislators establish embryos’ legal standing—or lack thereof—judges and parents alike are operating in a legal vacuum. Few judges are up to the task of carving out a new status for embryos as both property and potential people, but fewer still will get the opportunity to do so, as long as parents know embryo adoption is subject to legal uncertainty. The full promise of embryo adoption cannot be realized until the law catches up to technology to protect the rights of parents in this brave new variation on adoption.